Brogie seeks to recover for personal injuries incurred when, while a social guest, he fell down cellar stairs in a house in Franklin, New Hampshire, owned by the Vogels. The evidence most favorable to Brogie is set out below.
Brogie, his wife, and his wife’s sister (Vogel’s mother) *620 drove from Massachusetts to Franklin. They arrived in the early evening. Brogie and at least two Vogels left their coats in the kitchen. The Brogies and the Vogels then talked for a time in the living room. Other guests were expected and someone suggested that those present should hang up their coats before these guests arrived. Mr. and Mrs. Vogel, and the senior Mrs. Vogel, “all hung up their coats.” Brogie hung his coat up behind a door in or near the dimly lighted kitchen. The light inside that door was not turned on although there was a light switch there. It was turned on after the accident by the younger Mrs. Vogel.
The door, instead of leading to a closet, led to the cellar stairs. ‘ ‘ There was a hook arrangement on the back of the door extending out perhaps . . . ten inches used to store clothes which could have obscured the view of the steps to some degree. There were hooks in the cellarway for hanging clothes.” It was possible that clothing was hanging on both sides of the cellarway. “On opening the cellar door one would see ski boots, shoes, and other objects on a shelf on the right side of the stairway,” shown by photographs to have extended out about one foot over the stairs at the level of the kitchen floor.
As Brogie hung up his coat, he attempted to find a shelf on which to put his new hat. He “felt both sides of the closet. There . . . [were] clothes there. ... I stepped in with my hat .... I put my hat in the closet. I found out it wasn’t a closet. ... I was at the foot of the stairs, cement floor. I went down the whole flight of stairs.” No warning had been given to Brogie “whether that was a closet or cellar stairway.”
The trial judge denied the Vogels’ motion for a directed verdict based upon the pleadings and the evidence. The jury returned a verdict for Brogie. The only exception before us is that taken by the Vogels to the denial of the motion for a directed verdict. 1
*621
1. It was correctly agreed by counsel that the applicable substantive law was that of New Hampshire. In Massachusetts the substantive law governing an action of tort for physical injury is that of the place where the injury occurred.
Goodale
v.
Morrison,
2. New Hampshire substantive law is more favorable to Brogie’s position than that of Massachusetts. See
Hashim
v.
Chimiklis,
91 N. H. 456, 457 (“The duty owed by the owner ... of premises to a licensee is to give him reasonable information as to existing dangerous conditions, not open to his observation, of which the owner knows or should know. The licensee has the right to rely on a warning of risks which he may not, by the exercise of reasonable care, be expected to discover”);
Mitchell
v.
Legarsky,
95 N. H. 214, 216 (social guest treated as a “gratuitous ... or bare licensee”);
Maxfield
v.
Maxfield,
102 N. H. 101, 103; Restatement : (and Restatement 2d: [Tent, draft No. 5, April 8, 1960]), Torts, § 342. See also
Pickford
v.
Abramson,
84 N. H. 446, 447-448 (door leading to cellar mistaken for entrance);
Deacy
v.
McDonnell,
3. The Vogels contend that there was a fatal variance between the declaration and the proof. The declaration alleged that Brogie “was directed by . . . [a] defendant to a closet which was in reality the opening to a cellar stairway; [and] that when . . . [Brogie] followed the directions ... to hang his coat in said place he fell violently. ’ ’ The jury could reasonably infer from the evidence that the Vogels, who hung up their coats first, led Brogie to the cellar door, so that in a sense they directed him to that door for the purpose. The breach of duty most readily attributable to the Vogels, however, is that they failed to warn Brogie. There was no prejudice, or reasonable possibility of prejudice, to the Vogels from any minor discrepancy between the declaration and the proof. See
Sandler
v.
Elliott,
Exceptions overruled.
Notes
It is next apparent why the parties felt it necessary to print long sections of the charge in the bill of exceptions where no exception was taken to the charge.